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Anti-affirmative action ruling questioned

By Daily Bruin Staff

April 25, 1996 9:00 p.m.

Friday, April 26, 1996

Federal court grants temporary use of race factor in Texas

By Rachanee Srisavasdi

Daily Bruin Senior Staff

University officials in Texas announced last week that they
would temporarily resume using race as a factor in admissions and
scholarship decisions after a federal court granted them a stay on
a ruling that banned race preferences a month ago.

Delaying implementation of the ruling, the stay was granted
because of the U.S. Fifth Circuit Court of Appeals’ assumption that
the U.S. Supreme Court will eventually rule on the university’s
appeal.

In the case of Hopwood v. State of Texas, the circuit court
ruled that the University of Texas’ law school violated the 14th
Amendment by giving admission preferences to African- American,
Chicana/o and Latina/o applicants.

Signed by Judge Jerry Smith, the stay was granted to avoid
mid-year revamping of universities’ admission processes.

"In the unanimous view of the panel, the plaintiffs have been,
and are being, deprived of their constitutional rights. On the
other hand, the law school points out the continuing uncertainty
and confusion it faces while attempting to conduct an admissions
program that is not in conflict with applicable case law," Smith
wrote.

The March ruling ­ which reversed a lower court decision
that supported the university’s affirmative action program ­
was one of the broadest rejections of college race-based
preferences by a federal court, applying to public universities in
Texas, Louisiana and Mississippi.

In response to the ruling, University of Texas officials decided
to request that the Texas attorney general appeal the case to the
Supreme Court.

Texas’ public universities have already resumed using race as a
factor in admissions after having revised their admission
procedures following the ruling.

"The (court’s) ruling fell on us like an A-bomb," said Mark
Yudof, a university of Texas official. "The stay gives us an
opportunity to finish off the year with our admission process
before the ruling."

The court’s stay came one day after a Texas state board had
voted to terminate a $1.5 million scholarship program that
benefitted underrepresented students. In light of the ruling, the
board decided to award scholarships to "educationally
disadvantaged" students; now that the stay was issued, the board
plans to return race as a factor in its decisions.

In 1992, the state of Texas was sued by four Caucasian
applicants who had been rejected for admission into the
university’s law school, arguing that their grades and test scores
were higher than some underrepresented applicants.

The ruling is regarded by some as part of a chain of policy
reversals regarding the use of race as a factor in college
admissions. Last year, the University of California regents
rescinded affirmative action policies in both hiring and
admissions, a decision that brought the debate of affirmative
action in college admissions to the national forefront.

A potential Supreme Court decision would end national debates
over affirmative action policies, some UC administrators
claimed.

"The Supreme Court ruling will be one of the most important
decisions in the nation," declared Regent Ward Connerly, who
spearheaded the UC campaign against affirmative action. "It could
end the use of race in higher education and government institutions
as well."

Past affirmative action rulings by the Supreme Court reflect
mixed feelings toward race-based preference policies. In the 1978
case of the UC Regents v. Bakke, the U.S. Supreme Court ruled
5-to-4 that strict racial quotas violated civil rights laws, yet
added that some preferential treatment to promote diversity could
be justified.

"The school presents no compelling justification, under the 14th
Amendment or Supreme Court precedent, that allows it to continue to
elevate some races over others, even for the wholesome purpose of
correcting perceived racial imbalance," wrote Smith in the Texas
ruling’s majority opinion.

Public universities have cited the Bakke case as reasoning
behind using race-based preferences in admissions for years. Yet
according to the Texas ruling, Bakke could not be used anymore by
colleges to explain the use of race as a factor in admissions.

"A lot of people have always been uncomfortable with the
foundation of diversity having been built mainly on the Bakke
case," Connerly maintained.

Other rulings suggest the Court does not favor affirmative
action. In three recent cases ­ City of Richmond v. Croson,
Metro Broadcasting v. FCC and Adarand v. Peña ­ the Court
has ruled against race-based preferences in construction
contracting.

"(Bakke) has been undermined by more recent court decisions,"
explained Eugene Volokh, a law professor at UCLA. "Part of the
problem is since Bakke, race-based programs, including affirmative
action programs, have to pass strict scrutiny."

The stay is effective only until May 13, though it will
automatically be extended as soon as Texas files its appeal to the
Supreme Court. If the Court refuses to take the case, the stay will
be lifted.

"(The Texas case) is a ruling the court might decide to
reconsider," Volokh said. "It is likely the Court will hold that
diversity is not an acceptable excuse for using race
preferences."

If the Supreme Court upholds the circuit court’s ruling, it
would dramatically affect the diversity of public universities.

"It will lead to admission policies like the UC system is
contemplating, in which they use broad admissions criteria," Yudof
said. "It is wrong to think that such a system will produce the
same number of minority students gained through affirmative action
policies."

Texas’ public universities have already resumed using race as a
factor in admissions after having revised their admission
procedures following the ruling.

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